In State v. Phillips, the WA Court of Appeals held that the trial court did not violate an African-American defendant’s right to an impartial jury by dismissing a prospective juror despite the juror’s feelings that African American men are more prone to violence.

BACKGROUND FACTS

On July 1, 2016, Mr. Phillips came home late after his wife Ms. Philips was in bed asleep with their infant daughter. Ms. Philips told Mr. Phillips to leave her alone. Their daughter called 911 and reported that Mr. Phillips was hitting Ms. Philips. When Mr. Phillips saw his daughter was calling the police, he knocked the phone from her hands.

King County Sheriff’s deputies responded to the 911 call and found the house in chaos. Mr. Phillips was arrested and booked into jail. From jail, Mr. Phillips repeatedly called Mrs. Philips demanding that she get him out and expressing his anger at the police having been called. Mr. Phillips was charged with Assault in the Second DegreeDomestic Violence (DV) and Tampering With a Witness.

Jury Selection

During jury selection, the trial judge asked if any of the jurors had personal experience
with domestic violence. Juror 10 was among the members who raised their hand. When asked to elaborate, he explained that his sister and his wife’s sister-in-law were both involved in abusive relationships with intimate partners.

Juror #10 also revealed an experience in college after an intramural basketball game when an African American player on the opposing team assaulted him. Juror 10 explained, “nothing came of it, but it left an emotional imprint.” He further elaborated,

“And this is an emotional truth. I don’t live this way; I don’t believe this; but I’m also aware that feelings happen in reality that black men are more prone to violence . . . It was also notable that afterwards when, you know, the gym supervisor was called and there was just a huddle on the spot, and then, of course there was denial and, you know, dismissiveness of it. And that’s another narrative; that those who are violent try to get out of it; so those are two personal emotions imprints that are there, as well.”

From these comments, both the State Prosecutor and Mr. Philips’ defense attorney asked numerous questions to Juror #10. Ultimately, neither the State nor defense counsel exercised a peremptory challenge or moved to strike Juror #10 for cause. Later, Juror #10 served on the jury.

Ultimately, the jury found Phillips guilty of second degree assault and found the State prove aggravating circumstances. The jury was unable to reach a verdict on the witness tampering charge, and it was dismissed. Mr. Philips was sentenced to 120 months.

He appealed. One of the issues was whether Juror #10 should have been struck from serving on the jury panel.

Furthermore, in order to ensure this constitutional right, the trial court will excuse a juror for cause if the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The presence of a biased juror cannot be harmless; the error requires a new trial without a showing of prejudice.

Also, at trial, either party has a statutory right to challenge a prospective juror for cause. “Actual bias is a ground for challenging a juror for cause,” said the Court of Appeals. “Actual bias occurs when there is the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging.”

Furthermore, Under State v. Irby, RCW 2.36.110 and CrR 6.4 it is the judge’s duty to excuse potential jurors from jury service if they have manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect. These court precedents, statutes and court rules give a trial judge an independent obligation to excuse a juror, regardless of inaction by counsel or the defendant.

However, the Court of Appeals ultimately reasoned that the present case was distinguishable from Irby.

Also, the Court of Appeals reasoned that defense counsel was alert to the possibility of biased jurors.

“Defense counsel actively questioned Juror #10, including questioning whether, despite juror 10’s concerns, the juror would follow the court’s instructions and base his decision on the evidence presented,” reasoned the court of Appeals. “As a result, defense counsel did not challenge Juror #10. This suggests that defense counsel observed something during voir dire that led counsel to believe Juror #10 could be fair.”

Furthermore, the Court of Appeals said it was also significant that Phillips used his peremptory challenges to strike several jurors, but had one peremptory challenge remaining when he accepted the jury, including Juror #10. “Again, this suggests that defense counsel either wanted juror 10 on the jury, or did not want one or both the next potential jurors on the panel,” said the Court of Appeals.

Consequently, the Court of Appeals held that the trial court did not abuse its discretion in failing to excuse Juror #10 for cause and upheld Mr. Philips’ conviction.

My opinion? Bad decision.

I’ve conducted nearly 40 jury trials, which is more experience than most criminal defense attorneys have. In my experience, potential jurors have a tendency to mitigate, justify, deny, back-pedal and just plain cover up any biases they have. It’s human nature. Therefore, if any juror states they have a biases which prejudice a criminal defendant, then that juror should be excused. Period.

Unfortunately, it appears Defense Counsel also failed to strike Juror #10. That is unfortunate as well. As the judge said, however, this may have been strategic. Perhaps Defense Counsel wanted to avoid impaneling a potential juror who was actually more biased than Juror #10. We don’t know.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an experienced and proactive defense attorney is the first step toward gaining justice.

In United States v. Kecheczian, the Ninth Circuit Court of Appeals decided a trial court mistakenly allowed a juror to decide an aggravated identity theft and possession of unauthorized access devices case, when the juror admitted during jury selection that she had her social security number previously stolen and she was unable to explicitly state that she could put her personal biases aside.

BACKGROUND FACTS

After receiving a tip that Mr. Kechedzian was linked to a fugitive operating a large credit card fraud ring, federal agents conducted a trash pull from Kechedzian’s residence. In his trash, they found two counterfeit credit cards and, based on this, the agents obtained a search warrant. The resulting search of Kechedzian’s residence and cars uncovered two USB drives containing 1,451 stolen credit card numbers in text files, a Bluetooth-enabled “skimming device” commonly used to steal credit card information from gas station pumps, and several cards with stolen data re-encoded on the magnetic strips. Bank records revealed that many of the stolen card numbers had been used fraudulently at gas stations and other retail establishments across the United States.

“Does anyone feel, just based on the charges in this case, based on what this case is about, that they could not be fair and impartial to both sides? Does anyone feel that way at this point in time?”

Juror # 3 raised her hand. From there, she informed the court she was a past victim of identity fraud. Furthermore, she did not know whether she could put aside her biases. Later, at sidebar, defense counsel sought to have Juror # 3 excused for cause. However, the judge denied the motion.

“I think at the end of the day she confirmed or committed to the principles of the presumption of innocence and burden of proof,” said the judge. “I would deny the motion.” Consequently, Juror # 3 sat on Kechedzian’s jury.

The jury ultimately returned a guilty verdict, and Kechedzian was sentenced to 65 months in prison followed by three years of supervised release. The district court also ordered $114,134.76 in restitution. Kechedzian timely appealed.

COURT’S ANALYSIS & DECISION

The Court of Appeals began by saying the Sixth Amendment guarantees criminal defendants a verdict by an impartial jury, and the bias or prejudice of even a single juror is enough to violate that guarantee. Accordingly, the presence of a biased juror cannot be harmless. The error requires a new trial without a showing of actual prejudice. And any doubts regarding bias must be resolved against the juror. One important mechanism for ensuring impartiality is voir dire, which enables the parties to probe potential jurors for prejudice. After voir dire, counsel may challenge a prospective juror for cause, and a partial or biased juror should be removed if there is a showing of either implied or actual bias.

“Here, Kechedzian alleges bias under both theories,” said the Court.

Actual Bias Analysis

It explained that actual bias is the more common ground for excusing jurors for cause. Actual bias is the existence of a state of mind that leads to an inference that the person will not act with entire impartiality. Actual bias involves an inability to act impartially or a refusal to weigh the evidence properly It can be revealed through a juror’s express answers during voir dire, but it can also be revealed by circumstantial evidence during questioning.

The Court said that in contrast, implied bias is presumed only in extraordinary cases. “In analyzing implied bias, we look to whether an average person in the position of the juror in controversy would be prejudiced.”

Implied Bias Analysis

This Court described “implied bias” as applying to those extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances. Furthermore, the implied bias inquiry is an objective one. Even if a juror states or believes that she can be impartial, the court may find implied bias based on the circumstances.

The Court noted that here, although Juror # 3 was previously a victim of identity theft, this is not the type of “extreme” situation where we find implied bias. “Thus, we focus our analysis on the actual bias inquiry,” said the Court.

The Court reasoned that Juror #3 was ultimately asked if she could set aside her feelings, and act impartially and fairly to both sides of the case. She responded: “I believe so, yes.” The Court said that statement—“I believe so, yes”—appears somewhat equivocal. However, none of Juror #3’s equivocal statements could be understood as affirmative statements of impartiality. The Court reasoned that here, Juror #3 explicitly noted that she was unsure if she could put her personal biases aside.

“A juror can understand the presumption of innocence and burden of proof, yet still let personal prejudice infect her ability to be impartial.”

“When a juror is unable to state that she will serve fairly and impartially despite being asked repeatedly for such assurances, we can have no confidence that the juror will lay aside her biases or her prejudicial personal experiences and render a fair and impartial verdict,” said the Court. “Because this is precisely what occurred here, the district court was obligated to excuse Juror #3 for cause under an actual bias theory.”

Accordingly, the Court of Appeals reversed and remanded for a new trial.

My opinion? Good decision. In my trial experience, potential jurors who have suffered as victims of crime tend to be pro-prosecution. A potential juror who does not know if they can be fair or impartial should be excused for cause. Period.

In 2013, Matthew Erickson, a black man, was charged in Seattle Municipal Court with Unlawful Use of a Weapon and Resisting Arrest. After voir dire, the City of Seattle (City) exercised a peremptory challenge against tjuror #5, who was the only black juror on the jury panel. After the jury was empaneled and excused from the courthouse with the rest of the venire, Erickson objected to the peremptory challenge, claiming the strike was racially motivated. The court found that there was no prima facie showing of racial discrimination and overruled Erickson’s objection.

Erickson was convicted on both counts.

Erickson appealed the municipal court’s decision to King County Superior Court. The superior court affirmed the municipal court, finding that the circumstances surrounding the challenge did not raise any inference that the juror was stricken because of his race. The judge did not address whether Erickson’s motion was timely.

ISSUES

The WA Supreme Court granted review of Erickson’s appeal on the following issues:

1. Did Erickson waive his right to a Batson challenge when he objected after the jury was empaneled and both the jury and venire excused?

2. Did the trial court error in finding that Erickson did not make a prima facie showing of racial discrimination when the City struck juror #5?

For those who don’t know, in Batson v. Kentucky, the United States Supreme Court created a 3-step process for enforcing the constitutional rule against excluding a potential juror based on race. First, the defense must show that the circumstances at trial raise an inference of discrimination. Second, the prosecutor must give a nonracial reason for the strike. Third, the court decides if the prosecutor intentionally discriminated against the juror because of race. The decision was made to stop the unfair practice of race-based peremptory strikes of qualified minority jurors because at that time, prosecutors could easily mask their efforts to exclude racial minorities from jury service.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court ruled that Erickson did notwaive His Right to a Batson challenge when he objected to the striking of a juror after the jury was empaneled but before testimony was heard. It reasoned that a number of federal courts also allow Batson challenges after the jury has been sworn. Read together, the case law has adopted rules requiring that a Batson challenge be brought at the earliest reasonable time while the trial court still has the ability to remedy the wrong.

“These cases recognize that judges and parties do not have instantaneous reaction time, and so have given both trial courts and litigants some lenience to bring Batson challenges after the jury was been sworn,” said the Court. “This is in line with our own jurisprudence.”

The Court further stated that objections should generally be brought when the trial court has the ability to remedy the error, and allowing some challenges after the swearing in of the jury does not offend that ability.

“Although the timing was not ideal, the Batson challenge was raised when the trial court still had an opportunity to correct it,” said the Court. “So even though Erickson brought his Batson challenge after the jury was empaneled, the trial court still had adequate ability to remedy any error. Therefore, Erickson made a timely Batson challenge.”

Second, the WA Supreme Court Court ruled that the trial court did, in fact, error in finding that Erickson did not make a prima facie showing of racial discrimination when the Prosecutor struck juror #5.

Here, and in bold strokes, the Court changed how Batson is applied in Washington so that striking a juror who is the only member of a cognizable racial group automatically triggers a full Batson analysis by the trial court:

“The evil of racial discrimination is still the evil this rule seeks to eradicate,” the court explained, writing that “this alteration provides parties and courts with a new tool, allowing them an alternate route to defend the protections espoused by Batson. A prima facie case can always be made based on overt racism or a pattern of impermissible strikes. Now, it can also be made when the sole member of a racially cognizable group is removed using a peremptory strike.”

With that, the WA Supreme Court carved the following bright-line rule adopted from State v. Rhone:

“We hold that the trial court must recognize a prima facie case of discriminatory purpose when the sole member of a racially cognizable group has been struck from the jury. The trial court must then require an explanation from the striking party and analyze, based on the explanation and the totality of the circumstances, whether the strike was racially motivated.”

In other words, the peremptory strike of a juror who is the only member of a cognizable racial group on a jury panel does in fact, constitute a prima facie showing of racial motivation. Also, the trial court must ask for a race-neutral reason from the striking party and then determine, based on the facts and surrounding circumstances, whether the strike was driven by racial reasons.

The WA Supreme Court reverse Erickson’s conviction and remanded his case back to the trial court for a new trial.

My opinion? I’m very pleased. I wrote about unlawful race-based peremptory strikes in my blog on State v. Saintcalle; a WA Supreme Court case having similar dynamics, peremptory strikes and Batson challenges to the case at hand. In that post, I was very disappointed that the WA Supreme Court failed to fix a systemic problem of Prosecutors exercising race-based peremptory strikes during jury selection.

Finally, the WA Supreme Court has become more proactive in stopping this unfair, unconstitutional practice. It’s not enough for Prosecutors to give utterly superficial reasons for striking minority jurors when the real reason for striking them is blatantly staring us in the face. Now, and finally, Prosecutors must prove that their decision to strike is not race-based. This subtle, yet oh-so-important shift in perspective effectively addresses what’s really happening during jury selection and makes a solution toward preventing race-based peremptory strikes. Excellent.

In State v. Munzanreder, the WA Court of Appeals held that the jury selection process used by the trial court – which included a written questionnaire with a number of questions regarding exposure to media reports and questioning each juror individually about media exposure – protected the defendant’s constitutional rights to an impartial venue. Therefore, the trial court did not abuse its discretion when it denied the motion to change venue.

BACKGROUND FACTS

John J. Munzanreder appealed his conviction for the first degree murder of his wife. Because of the sensational nature of the alleged crime, local media extensively covered his case from arrest through trial.

Munzanreder worked with Juan Ibanez at Valley Ford in Yakima, Washington. In
early February 2013, Ibanez approached Munzanreder and asked him for money for a
toolbox. Munzanreder agreed to give him the money ifhe helped get rid of somebody.
Munzanreder told Ibanez that he wanted help killing his wife, Cynthia, and would give
him $20,000. Ibanez said he would help, but he would not kill her.

Munzanreder gave Ibanez cash and directed him to purchase a gun. Munzanreder
told Ibanez his plan: Munzanreder and his wife would go the movies, he would shoot her
with the new gun, he would then throw the gun to Ibanez in some nearby bushes, and
Ibanez would run away with the gun.

On February 28, 2013, the Munzanreders went to see a movie at the Majestic
Theater in Union Gap, Washington, a small city immediately south of Yakima. Ibanez received a prearranged text message from Munzanreder that the plan would be executed
and went to the theater and waited in the bushes adjacent to the theater’s parking lot.

After the movie, as the couple approached their car, Munzanreder shot his wife with the
gun purchased by Ibanez. Munzanreder then threw the gun into the bushes where Ibanez
waited. As Ibanez left the scene with the gun, he ran past a couple near his car.

Law enforcement arrived and questioned witnesses. Munzanreder told law
enforcement he heard a shot and saw a man in black clothes running away. Munzanreder
said he had followed the man, but fell and injured himself, developing a black eye.

Munzanreder’s wife later died from her injuries.

Law enforcement continued to investigate. They interviewed Ibanez, whose car
had been reported at the crime scene. Ibanez quickly confessed and told law enforcement
of the details of the crime. Media coverage of both the murder and the arrests quickly
saturated Yakima County.

Defense counsel and the State had worked together to create an agreed juror
questionnaire. The purpose of the questionnaire was to uncover juror bias, so that the
trial court and the parties could individually interview venire jurors with possible bias in
open court but outside the presence of other venire jurors.

The questionnaire contained many questions, including questions focusing on
pretrial publicity about the case. Those questions asked the venire jurors to list media
sources they used, whether they generally believed the media, whether they thought the
media was fair to both sides of a case, and what criminal cases they followed in the
media. It also specifically asked about Munzanreder’s case. The questionnaire asked
venire jurors if they knew information about the case from any sources, and concluded the
section by asking if they had formed any opinions about the case. The questionnaire also
asked venire jurors if they wanted to discuss their answers separately from other jurors.

The completed questionnaires revealed that 105 of the remaining 128 venire jurors knew
about the case; of these 105, 24 had formed opinions; and of these 24, most believed
Munzanreder was guilty.

Before the remaining venire panel returned to the courtroom, Munzanreder orally
moved for a change of venue. The motion was anticipated because Munzanreder had
earlier said he would make such a motion, and had provided the trial court and the State
with copies of local media stories and media Facebook posts.

The State, although opposing Munzanreder’s motion, indicated the trial court might give additional peremptory challenges. Munzanreder responded that he might ask for additional peremptory challenges, but would not do so until after the court ruled on his motion. The trial court took the motion under advisement and said it would make its ruling later in the jury selection process.

The parties completed voir dire and then went through the process of selecting the
Jury. The trial court permitted each party 6 peremptory challenges for the first 12 jurors,
and 1 additional peremptory challenge for each of the 3 alternate jurors. Munzanreder
never asked for additional peremptory challenges.

The panel was sworn in. The trial court provided the panel various preliminary
instructions and then excused them for lunch. With the panel excused, the trial court gave
its oral ruling denying Munzanreder’s motion to change venue.

Over the next several days, the parties presented their evidence.

The jury returned a guilty verdict on 1st degree murder with a firearm
enhancement. The trial court sentenced Munzanreder to 340 months of incarceration.

Munzanreder timely appealed. His principal arguments on appeal are the trial court abused its discretion when it denied his motion to change venue, and the voir dire process used by the trial court failed to protect his constitutional right to an impartial jury.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court applied a Gunwall analysis to determine if the Washington Constitution provides greater protection than the United States Constitution in a particular context. A Gunwall analysis must be performed, if litigants want the court to consider whether a parallel constitutional provision affords differing protections.

Here, the Court found that Munzanreder’s state constitutional right to an impartial jury should be interpreted as providing the same degree of protection as the parallel federal constitutional right. The Court similarly held that article I, section 22 of the WA Constitution’s right to an impartial jury does not provide any more protection than the Sixth Amendment.

Second, the Court of Appeals raised and dismissed Munzanreder’s arguments that the voir dire process employed in his case was insufficient. It reasoned that under Lopez-Stayer v.Pitts, a trial court has considerable discretion in conducting voir dire. Abuse of discretion occurs when a trial court bases its decision on untenable grounds or untenable reasons.

Here, the Court of Appeals discussed how extensive and meticulous jury selection was in this case. The trial court summoned 243 potential jurors. The parties worked together to craft an extensive juror questionnaire that satisfied the State, Munzanreder, and the trial court. The trial court granted several dozen individual interviews in open court outside the presence of other venire jurors. The trial court was fully involved with the process, and asked questions designed to expose bias and to ensure that jurors would reach a verdict based on the evidence presented at trial and on the court’s instructions on the law. Jury selection took over four days. Munzanreder did not request additional peremptory challenges, despite knowing he had that option. Munzanreder simply asserts now that the process was insufficient, although he was heavily involved at trial in developing the process used. Ultimately, the Court of Appeals decided that because Munzanreder does not show an abuse of discretion, his appeal on this issue fails.

Third, the Court of Appeals raised and dismissed Munzanreder’s arguments that the jury selection process used by the trial court was constitutionally deficient. He attempts to punctuate his point by showing that four biased jurors were empaneled. The Court reasoned that A party may challenge a juror for cause under CrR 6.4(c); and RCW 4.44.170. The trial court is in the best position to determine whether a juror can be fair and impartial because the trial court is able to observe the juror’s demeanor and evaluate the juror’s answers to determine whether the juror would be fair and impartial. For this reason, this court reviews a trial court’s denial of a challenge for cause for a manifest abuse of discretion.

Here, the Court of Appeals found no manifest abuse of discretion. Munzanreder failed to use his peremptory challenges to remove juror #51, a potentially bad and unbiased juror. He also elected not to request additional peremptory challenges. If the trial court erred in denying Munzanreder’ s for cause challenge of venire juror 51, because Munzanreder elected not to remove venire juror #51 with his allotted peremptory challenges or by requesting additional challenges, Munzanreder waived that error.

Fourth, the Court of Appeals raised and dismissed Munzanreder’s arguments that the trial court abused its discretion when it denied his motion for a change of venue. He primarily argues the pretrial media publicity was overwhelmingly inflammatory, which prejudiced the jury pool against him. The Court reasoned that in order to prevail on a change of venue motion, the defendant need only show a probability of unfairness or prejudice. Sheppard v. Maxwell, State v. Rupe. The following nonexclusive factors aid our review of whether a trial court abused its discretion in denying a change of venue motion:

“(I) the inflammatory or noninflammatory nature of the publicity; (2) the degree to which the publicity was circulated throughout the community; (3) the length of time elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the difficulty encountered in the selection of the jury; (5) the familiarity of prospective or trial jurors with the publicity and the resultant effect upon them; (6) the challenges exercised by the defendant in selecting the jury, both peremptory and for cause; (7) the connection of government officials with the release of publicity; (8) the severity of the charge; and (9) the size of the area from which the venire is drawn.”

Here, the Court of Appeals reasoned that although the initial venire pool provided substantial challenges because of the trial court’s careful process for selecting a jury, it was highly confident that 11 of the 12 empaneled jurors were impartial.

“If venire juror #51 was biased, Munzanreder had the opportunity to remove him,” said the Court. “Munzanreder elected not to use any of his peremptory challenges to remove venire juror 51, and he did not request additional peremptory challenges. These two facts strongly suggest that even Munzanreder believed the empaneled jury was fair and impartial.” With that, the Court of Appeals concluded the trial court did not abuse its discretion when it denied Munzanreder’s motion to change venue.

The ACLU believes, however, that Batson has failed to adequately protect potential jurors and the justice system from biased use of peremptories. In proposing its new rule, the ACLU deftly cites and relies upon State v. Saintcalle, a Washington State Supreme Court case which admits that Batson was failing to end racial discrimination in jury selection. The Saintcalle Court recognized there was ample data demonstrating that racial bias in the jury selection process remained “rampant”:

“Twenty-six years after Batson, a growing body of evidence shows that racial discrimination remains rampant in jury selection. In part, this is because Batson recognizes only “purposeful discrimination,” whereas racism is often unintentional, institutional, or unconscious. We conclude that our Batson procedures must change and that we must strengthen Batson to recognize these more prevalent forms of discrimination.”

Saintcalle, 178 Wn.2d at 36.

In addition to the WA Supreme Court’s Saintcalle, the ACLU also argues that legal scholars have also long noted Batson’s failure to effectively eradicate discrimination in peremptory challenges.

THE “OBJECTIVE-OBSERVER” STANDARD

The ACLU proposes that GR 36 addresses this problem by employing a test that utilizes an objective-observer standard. Apparently, the trial court would invalidate a peremptory strike if an objective observer could find that race or ethnicity was a factor for a peremptory challenge. GR 36 also gives trial courts the necessary latitude to protect the justice system from bias by granting courts the freedom to raise objections to a peremptory strike sua sponte. It would also bring greater diversity to juries, so that juries in Washington are more representative of the communities they serve.[12] The rule would also improve the appearance of fairness and promote the administration of justice.

My opinion? I hope GR 36 passes. The Washington State Supreme Court has the flexibility to “extend greater-than-federal Batson protections” through its rule-making authority. Also, other states have adopted court rules dealing with the Batson issue.

GR 36 preserves the use of peremptory challenges as part of the right to a jury trial while at the same time addressing racial bias in jury selection. Thankfully, the rule also provides guidance to the judiciary and attorneys about how to apply the rule. By adopting this rule, Washington will ensure that its justice system is not improperly tainted by bias, protect Washingtonians from discrimination, ensure diversity in juries, and address systemic, institutional, and unintentional racism in jury selection.

The U.S. Supreme Court just sent a strong message about racism in the justice system.

In Foster v. Chatman, the Court reversed a defendant’s murder conviction after discovering that the Prosecutor systematically eliminated African American jurors from serving on Mr. Foster’s jury because of their race.

Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State used peremptory challenges to strike all four black prospective jurors qualified to serve on the jury.

Foster argued that the State’s use of those strikes was racially motivated, in violation of Batson v. Kentucky. The trial court rejected that claim, and the Georgia Supreme Court affirmed. Foster then renewed his Batson claim in a state habeas corpus proceeding.

While that proceeding was pending, Mr. Foster’s defense attorneys used the Georgia Open Records Act to obtained the Prosecutor’s file used during trial. In notes, prosecutors had highlighted the African Americans on several different lists of potential jurors. On one list, under the heading “Definite NOs,” prosecutors listed six potential jurors, all but one of whom were black.

Eventually, the U.S. Supreme Court granted review of the case on the issue of whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky in the extraordinary circumstances of this death penalty case.

The Court reasoned that the Georgia Supreme Court’s decision that Foster failed to show purposeful discrimination was clearly erroneous. They started with Batson’s three-step process for adjudicating claims such as Foster’s. First, a defendant must make a prima facie showing that a preemptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, the trial court must determine whether the defendant has shown purposeful discrimination.”

Here, and in sum, the Court reasoned that Foster established purposeful discrimination in the State’s strikes of two black prospective jurors:

” . . . along with the prosecution’s shifting explanations, misrepresentations of the record, and persistent focus on race, leads to the conclusion that the striking of those prospective jurors was motivated in substantial part by discriminatory intent . . . the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”

My opinion? Good decision. The decision is a forceful blow against racism in the courts. Although the Foster decision won’t end racial discrimination in jury selection, it is certainly vindication for the potential jurors who weren’t allowed to fulfill their civic duty all those years ago because of their race. As for Foster, his future is still in limbo. The Supreme Court’s decision entitles him to a new trial before a jury of his peers that hasn’t been tainted by racial discrimination. Still, that mere fact doesn’t guarantee a different outcome. The new jury may come to the same conclusion as the old one. But if nothing else, Mr. Foster’s death penalty has likely been put off for many years to come. And in the world of death penalty litigation, that counts as a win.

Client was charged with Assault Fourth Degree Domestic Violence (DV) under RCW 9A.36.041 and Malicious Mischief Third Degree (DV) under RCW 9A.48.090. Here, Client allegedly destroyed her ex-boyfriend’s laptop and struck him in the face while they argued. Both crimes are gross misdemeanors punishable up to 1 year jail and a $5,000 fine each. Making matters worse, a conviction for DV crimes brings enhanced jail penalties, mandatory DV evaluations and treatment, mandatory probation, a court-imposed No-Contact Order with the alleged victim and loss of firearms rights.

The Prosecutor refused to negotiate or resolve the charges in light of client’s prior criminal history. Also, the alleged victim insisted he was victimized throughout his relationship with Client. Nevertheless, and at trial, Mr. Ransom successfully suppressed evidence of Client’s prior bad acts and criminal convictions under Evidence Rule (ER) 404(b) and ER 609. Although the judge denied Mr. Ransom’s self-defense jury instruction, Mr. Ransom successfully prevailed at trial by raising reasonable doubt to the State’s lack of evidence and the alleged victim’s lack of credibility. The jury acquitted Client under 1 hour.

Here, defendant George Strange was accused of Child Molestation Second Degree and Voyeurism. from 2011 to 2013, Strange lived with his wife and his wife’ s children, who are juveniles. Here, juvenile J.M. was 12 years old when Strange allegedly fondled her breasts one night. He explained he was giving her a breast examination.

During jury selection, the court and attorneys asked the prospective jurors about their personal experiences with child molestation. Although most of the jurors had no personal experience with child molestation, almost one-third of the jurors knew someone who was either a victim or had been charged with child molestation. In response to the court’ s questioning, juror no. 54 stated,

JUROR: “Um — what I said before, like, I know people that I know. Like it’ s not an easy accusation to make. Like, it is hard for people (inaudible). It’ s like if accusations were made there’ s something behind that . . . I don’ t — like, I don’t have a ton of experience but it has just been my experience people don’ t make that accusation, you know, for no reason. Like, I feel like if an accusation was made there had to be something that had happened.”

Juror no. 54 was excused for unrelated hardship reasons.

During trial, other witnesses testified to Strange’s odd behavior around J.M. Additionally, the State played a recorded video of Strange being interviewed by a police detective who commented on Strange’s behavior during the interview. Finally, Strange did not call any witnesses nor did he testify. At the end of trial, Strange was found guilty on all counts.

On appeal, Strange argued that his right to a fair trial by an impartial jury was violated because of prospective jurors’ statements concerning their own prior experiences with child molestation, either in their families or among friends or acquaintances, which tainted the entire jury venire.

The court rejected Strange’s arguments. It reasoned that article I, § 22 of the Washington Constitution guarantees a criminal defendant the right to a fair trial by unbiased jurors.” Also, the Sixth Amendment to the United States Constitution also guarantees the right to a fair trial by impartial jurors. Here, no prospective juror professed any expertise about sexual abuse cases. Therefore, there is no concern about a prospective juror with more credible, authoritative knowledge tainting the rest of the jury pool.

Second, most jurors were merely questioned about their experiences with child molestation and asked if they could remain impartial. Some jurors admitted to a potential bias, most said they could apply the court’ s instructions impartially, and two prospective jurors asked for individual voir dire, preferring not to talk about their experiences in front of the rest of the jury pool. Consequently, the Court of Appeals decided that Strange received a fair trial by an impartial jury.

Finally, the court rejected Strange’s argument that his defense attorney was ineffective because he failed to object to the admission of Strange’s recorded interview with police. The court reasoned that because defense counsel’s failure to object was a legitimate trial tactic, it cannot be said that Strange’ s trial counsel’ s performance was deficient. Therefore, his claim for ineffective assistance of counsel fails. The decision of Strange’s attorney to not play the video was a legitimate trial tactic, and did not amount to ineffective assistance of counsel.

My opinion? Oftentimes, during jury selection, prospective jurors say things out loud which may appear to discredit the defendant, especially when the charges are particularly galvanizing. A defense attorney must be cautious in proceeding with these jurors. A good technique is to ask the juror to extrapolate “what they mean” if the juror says they have difficulty being objective, and/or if the juror says the defendant “must be guilty of something.” The attorney can strike the juror for cause because the juror could be biased against the defendant.

Still, it’s difficult to “unring the bell,” so to speak, when a prospective juror says controversial things which may hurt the defendant’s chances at trial if the rest of the jury pool believes that juror’s statements. This is the essence of “tainting the jury,” which is reversible error and should be avoided at all costs. In response, another good tactic is to inquire if other potential jurors feel the same as the juror who aired their grievances. Find someone shaking their head “No.” Ask them why. Chances are, they’ll say something about giving the defendant a fair trial, or presumption of innocence, or something like that. Test the waters. Guide the jurors back toward their oath that they MUST presume the defendant not guilty throughout trial. Remind them that if they serve as jurors, they’re under oath to withhold their personal biases and reserve judgment until after hearing all of the evidence.

In State v. Irby, The WA Court of Appeals reversed the murder conviction of a defendant because a juror’s remarks during jury selection indicated her express bias against the defendant.

In reaching their decision, the court reasoned that when a juror makes an unqualified statement expressing actual bias, seating the juror is a manifest constitutional error that may be raised on appeal. Also, a juror’s statement during voir dire that she “would like to say he’s guilty” requires a new trial because no inquiry was made from the Prosecution that would have neutralized the statement.

In 2005, James Rock was murdered at his home in rural Skagit County. The investigations led to Terrance Irby, a known associate of Rock. Rock’s neighbors had seen Irby in the neighborhood on March 8. Irby was soon located in custody in Marysville. He had been arrested there on March 8, after running a red light and attempting to elude police. In Irby’s truck, officers found Rock’s weapons and boots splashed with Rock’s blood.

Oddly enough, in 2011, the WA Supreme Court had already reversed Irby’s convictions because of a violation of his right to a public trial. The violation occurred when the court and the attorneys agreed by e-mail, without Irby’s participation, to dismiss some of the potential jurors before voir dire began.

The State recharged the case. He awaited trial. Irby had three different standby counselors while his case was pending. Irby fired all of them before the second trial began. As a consequence, the trial court granted Irby’s request to proceed pro se; or in other words, by himself without defense counsel.

On March 5, 2013—the first day scheduled for jury selection —Irby voluntarily absented himself from the proceedings. Irby said he did not believe he could get a fair trial in Skagit County. Trial became somewhat of a circus. By Irby’s choice, the trial proceeded before a jury that had been picked without any participation by Irby. Every day before trial resumed, the trial court had Irby brought from the jail into the courtroom so that the court could verify that he still wanted to remain absent.

The jury convicted Irby as charged on March 12, 2013.

The primary issue on appeal was whether juror bias – specifically, the bias of the juror who said she “would like to say he’s guilty” – violated Irby’s right to a fair and impartial jury.

In reaching its decision the Court of Appeals reasoned that under RAP 2.5(a)(3), a party may raise for the first time on appeal a “manifest error affecting a constitutional right.” Here, criminal defendants have a federal and state constitutional right to a fair and impartial jury. Criminal defendants have a federal and state constitutional right to a fair and impartial jury. The error alleged here, seating a biased juror, violates this right.

Furthermore, the court reasoned that seating that particular juror manifested actual bias. Under RCW 4.44.170(2) actual bias is “the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging.” The Court of Appeals said both thetrial judge and the Prosecutor failed to elicit any assurances from that juror that she had an open mind on the issue of guilt. This was wrong.

The Court of Appeals concluded that the juror at question demonstrated actual bias and that seating her was manifest constitutional error requiring reversal of all convictions and remand for a new trial.

My opinion? It’s awful and tragic that Mr. Rock died a violent and painful death. My condolences go to his family and everyone who cared for him. Anyone in their circumstance would want the murderer brought to justice and convicted for these horrible crimes.

However, gaining convictions is meaningless if the courts and prosecutors violate a defendant’s rights in the process. It devalues the entire criminal justice system. It loses credibility and coherence.

Perhaps the Judge and Prosecutor failed to make a record of “rehabilitating” that particular juror of her biases – a process which happens at EVERY jury trial I’ve conducted – because neither Mr. Irby nor a criminal defense attorney was at jury selection to attempt to strike that particular juror for cause. Neverthless, all of us now have a greater understanding of why it’s necessary for attorneys to engage the colloquy of ensuring that jurors are NOT biased – even when they most certainly are.

Eliminating biased jurors from trial not only ensures a fair trial for the defendant. It also creates a court record for ensuring that jury verdicts are not overturned on appeal. As this one was.